Briggs v. McDonald

• Decision Date: 29 April 1896
• Citation: Briggs v. McDonald, 166 Mass. 37, 43 N.E. 1003 (Mass. 1896)
• Parties: BRIGGS v. McDONALD et al.
• Court: Supreme Judicial Court of Massachusetts

166 Mass. 37

43 N.E. 1003

BRIGGS v. McDONALD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 29, 1896

COUNSEL

H.E. Fales and S.H. Tyng, for plaintiff.

S. Hoar and M.T. Allen, for defendants.

OPINION

ALLEN J.

The original plaintiff, Briggs, being a deputy sheriff, had in his hands a writ for service in favor of McDonald against Carr Bros., and, at McDonald's request, attached certain personal property thereon, of the value of $4,870.79, and took a bond of indemnity from McDonald, with a surety, and put the property in charge of McDonald as keeper. This property was subject to two mortgages, one in favor of Jane Carr, and the other in favor of James H. Carr both of whom afterwards brought actions against Briggs for the conversion of their mortgaged property, and recovered judgments therein on March 7, 1892, amounting together to $5,325.84. Briggs and McDonald were both negligent in the care of the property, and it would seem that there was a waste or loss; but it did not appear what was the value of the property on hand at the date of the recovery of the judgments, or of Briggs' death, which occurred September 17, 1892. It did appear, however, that, at the time of the hearing before the assessor, the value of such of the attached articles as then remained was, at the time of the attachment, $3,000. An executrix of Briggs' will was appointed, and neither Briggs nor the executrix has paid anything on the judgments against him. This action was brought in the name of Briggs in his lifetime, against the principal and surety in the bond of indemnity, for the benefit of Jane Carr and James H. Carr, to whom Briggs had assigned the bond; and the action is now prosecuted in the name of the executrix.

It is plain that an action may be maintained upon the bond without first paying the judgments against Briggs. Cook v Merrifield, 139 Mass. 139, 29 N.E. 540. In that case no question was considered as to the amount for which execution should issue.

It is objected that the attachment was invalid, for want of a sufficient return. But the obligors in the bond are bound by the recital therein that Briggs had attached the goods. Cutler v. Dickinson, 8 Pick. 386.

The other questions relate to the amount for which execution should issue. This is to be for so much of the penal sum as is due and payable in equity and good conscience. Pub.St. c. 171, § 10. It appears that both Briggs and his keeper were negligent in the care of the attached property. It was the duty of the officer to exercise care and diligence in order to preserve the property, and it seems that there was some loss which was attributable to his own negligence in this respect. For such loss, occasioned by his independent negligence, not assented to by McDonald or his surety, he could have no remedy on the bond against either the principal or the surety. It was a loss occasioned by his own failure to perform his duty. See Wiggin v. Atkins, 136 Mass. 292. From the sum which otherwise would be recoverable upon the bond there should be deducted whatever was lost by the negligence of the officer.

There was a further loss, it would seem, which was attributable to the negligence of McDonald, as keeper. McDonald was the plaintiff in the action in which the attachment was made, and, by his request, Briggs appointed him as keeper of the attached property. If Briggs had selected some third person as keeper, he would have been responsible for his negligence or misconduct, since the keeper is merely the servant of the officer. Parrott v. Dearborn, 104 Mass. 104; Robinson v. Besarick, 156 Mass. 141, 30 N.E. 553. But where the plaintiff in the action himself selects the keeper, or where he is himself appointed, he cannot hold the officer responsible. Donham v. Wild, 19 Pick. 520. So far as McDonald is concerned, therefore, the loss occasioned by his own negligence as keeper cannot be availed of in defense.

In respect to the surety the case stands differently. If the surety had executed a separate obligation to indemnify the officer against loss resulting from the making of the attachment, this defense would be open, because, as to the surety, the negligence of the officer's keeper would be the same thing as the negligence of the officer himself. There is nothing to show that the surety assented to the appointment of the keeper, or even knew of it. It was no part of the condition of the bond to indemnify Briggs against loss occasioned by the negligence of a keeper who might be appointed by him. So far as the equities of the surety are concerned, the fact that McDonald was keeper, instead of some third person, makes no difference. As keeper, McDonald was the servant of Briggs, and the surety did not undertake to become responsible to Briggs for the negligence of Briggs' servant. This would be quite plain if the obligation of the surety were expressed in a separate instrument. But it is contended by the plaintiff that this defense is not...